SAHANA BUILDER & DEVELOPERS P. LTD, MUMBAI V. DCIT CEN CIR 4(2), MUMBAI

ITA 5480/MUM/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5295 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 08-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGHDR
• Assessee Lawyers: UTTAM CHAND BOTHRA
• Section: 271(1)(c)

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.5480/MUM/2016 ASSESSMENT YEAR: 2012-13 SAHANA BUILDERS & DEVELOPERS PVT. LTD. 54-B, 402, SAGAR AVENUE JUNCTION OF LALLUBHAI PARK & S.V. ROAD, ANDHERI (W), MUMBAI 400058 / VS. DCIT, CENTRAL CIRCLE-4(2), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400021 !' / ASSESSEE # / REVENUE P.A. NO.AAHCS4782P !' / ASSESSEE BY SHRI UTTAM CHAND BOTHRA # / REVENUE BY CHAUDHARY ARUN KUMAR SINGH - DR $ #%&'' / DATE OF HEARING 16/10/2018 &'' / DATE OF ORDER: 31/12/2018 / O R D E R PER JOGINDER SINGH, VICE PRESIDENT THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 30/06/2016 OF THE FIRST APPELLATE AUTHORITY, MUMBAI , ITA NO.5480/MUM/2017 SAHANA BUILDERS & DEVELOPERS PVT. LTD. 2 CONFIRMING PENALTY OF RS.80,21,640/-, LEVIED UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT). 2. DURING HEARING, SHRI UTTAM CHAND BOTHRA, LD. COUNSEL FOR THE ASSESSEE, CONTENDED THAT THE TRIBUN AL WHILE CONSIDERING THE QUANTUM ADDITION, ALLOWED THE APPEAL OF THE ASSESSEE, THEREFORE, THE PENALTY WILL NOT SURVIVE. THE LD. COUNSEL INVITED OUR ATTENTION TO T HE ORDER OF THE TRIBUNAL DATED 29/08/2018, MADE AVAILABLE ON RECORD. THE LD. DR, CHAUDHARY ARUN KUMAR SINGH, DID NOT DISPUTE THAT THE TRIBUNAL DELETED THE ADDITION MADE BY THE LD. ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT ED THAT THE LD. ASSESSING OFFICER MADE THE ADDITION AND ON THE BASIS OF THAT ADDITION IMPOSED PENALTY UNDER SECTIO N 271(1)(C) OF THE ACT. THE TRIBUNAL BY AN ELABORATE DISCUSSION/DECISION DELETED THE ADDITION WHICH IS M ATTER OF RECORD. THUS, THERE IS NO BASIS IN CONFIRMING TH E PENALTY BECAUSE THE ADDITION WHICH IS THE SOLE BASE FOR IMPOSING THE PENALTY WAS DELETED BY THE TRIBUNAL, ITA NO.5480/MUM/2017 SAHANA BUILDERS & DEVELOPERS PVT. LTD. 3 THEREFORE, THE PENALTY CANNOT SURVIVE. OUR VIEW FI ND SUPPORT FROM THE DECISION IN K.C. BUILDERS VS ACIT (2004) 265 ITR 562 (SC) AND THE RATIO LAID DOWN IN CIT VS S.P. VIZ, 176 ITR 76 (PATNA). EVEN OTHERWISE, WHEN THE QUANTUM ADDITION IS DELETED, THERE REMAINS NO BASIS AT ALL FOR LEVYING THE PENALTY FOR CONCEALMENT OR FURNISHI NG INACCURATE PARTICULARS, BECAUSE, OF ITS OWN, THE PE NALTY CANNOT STAND ON ITS LEGS WHEN ADDITION ON THE BASIS OF WHICH THE PENALTY WAS IMPOSED REMAINS NO MORE IN EXISTENCE. THUS, WE DIRECT THE LD. ASSESSING OFFICE R TO DELETE THE PENALTY. THUS, THE APPEAL OF THE ASSESSE E IS ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON16/10/2018. SD/- SD/- ( RAMIT KOCHAR ) (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $%& /VICE PRESIDENT $ % MUMBAI; ) DATED : 31/12/2018 F{X~{T? P.S / *# ITA NO.5480/MUM/2017 SAHANA BUILDERS & DEVELOPERS PVT. LTD. 4 '()*+ ,+-) / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 00 $ 1' ( + ) / THE CIT, MUMBAI. 4. 00 $ 1' / CIT(A)- , MUMBAI 5. 4#5.' , 0+'+6 , $ % / DR, ITAT, MUMBAI 6. 7 8% / GUARD FILE. / BY ORDER, $/ (DY./ASSTT. REGISTRAR) , $ % / ITAT, MUMBAI